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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

A trio of civil decisions by the Ohio Supreme Court this past week.  In Nadra v. Mbah, the court declared that RC 2305.10's two-year statute of limitations for personal injuries was the appropriate limitations period for Federal civil rights actions under 42 USC 1983; although the 6th Circuit and most Ohio courts had applied that statute, two districts used the four-year period under RC 2305.09

In LaNeve v. Atlas Recycling, the court held that an amendment of a complaint to include two previously-designated "John Doe" defendants failed because of technical non-compliance with CivR 15(D) -- specifically, the failure to include "last name unknown" on the summons, and failure to use personal service.  Amending a complaint to identify a John Doe defendant under the Ohio rules is probably one of the most complex human endeavors this side of reattachment of body parts, and there's a guy in my office who is probably one of the six lawyers in Ohio who knows exactly how to do it, so I'll ask him and maybe do a post about it.  Or not.

Then there was VII Laser Sys. v. Shiloh Indus., which deals with the situation where the judge thinks the jury has awarded you too much money -- something that's happened to me... well, gosh, never -- and orders a remittitur:  you either agree to take less money, or the judge orders a new trial.  Shiloh explains that in such cases, the time to appeal runs from the date the plaintiff agrees to the remittitur, not from the date the judge orders it. 

A bunch of disciplinary cases, too, the morals of which are:  don't let your secretary file cases, take fees, and charge expenses on your behalf; don't charge an excessive fee, sue the client, and then try to bully the disciplinary committee; and don't commingle funds and then overdraw your IOLTA account

Now, what happened in the courts of appeals...

Criminal.  1st District holds that where only one person dies, multiple counts of aggravated vehicular homicide merge; this reverses its earlier decision in State v. Hundley, discussed here, and I'll have a more extensive post on this tomorrow... 8th District says that cop's testimony as to difference between drug users and drug dealers was permissible lay testimony... Also affirms dismissal of indictment with prejudice after declaration of mistrial, where trial court determined that prosecutor had intentionally caused mistrial because state's case was "going south"... 4th District reverses conviction of passenger for possession of drugs found in back of truck, says that facts didn't show constructive possession... On plain error analysis, 4th District reverses defendant's conviction because of state's use of defendant's post-arrest, pre-Miranda silence in its case-in-chief...

Civil.  Good discussion in this 2nd District case of when counsel must be disqualified because he may be a witness in the proceeding... After court terminated shared parenting plan because parents couldn't get along, it couldn't designate both parents are residential parents and have them split possession of child 50-50, 6th District says; one parent or other had to be designated residential parent... 10th District says that personal service of contempt motion on party in post-decree divorce proceedings necessary, service on party's attorney insufficient... 2nd District holds that a guardian may institute a divorce complaint for his ward... 8th District says that court has discretion to accept in-court settlement in dissolution without finding it to be fair and equitable, as long as it was entered into without fraud, overreaching, or undue influence...

For me, but not for thee... In Brown v. Bowers, the 1st District affirms the dismissal with prejudice of a medical malpractice case.  The plaintiffs were not present for trial, having gone to a funeral for a family member in Mississippi, and the trial court refused to grant a continuance.

That was not the first time the case had been continued; a year earlier, after the plaintiffs had paid for airfare for their expert and were prepared to go to trial, the trial judge sua sponte continued it.

The reason?  So that he could attend a funeral.


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